In Chandok v Tirkey the EAT has for the first time considered whether caste can fall within the protected characteristic of race for the purposes of the Equality Act.

Langstaff P expressly disavowed the creation of any new general point of principle in his judgment, saying “My focus has been on the appeal in this particular case, in its particular circumstances: I have not seen my role as being to resolve academic disputes, and establish more general propositions, of no direct relevance to the case in hand.”

He found that “there may be factual circumstances in which the application of the label “caste” is appropriate, many of which are capable – depending on their facts – of falling within the scope of section 9(1) [race discrimination], particularly coming within “ethnic origins”, as portraying a group with characteristics determined in part by descent, and of a sufficient quality to be described as “ethnic”“.

It followed that it was wrong in principle to strike out an allegation that someone had been discriminated against on the basis of their caste since they may, on the facts of their particular case, be able to satisfy an employment judge that their caste is a matter of ethnic origin, or otherwise falls within the usual categories of race discrimination.

For caste automatically to be considered an aspect of race discrimination would require action from Parliament to implement s9(5) of the Equality Act, which permits regulations to be made including caste as an aspect of race discrimination.